Newsletter

Two significant rulings will impact employers

On February 7, 2019, the Arizona District Court in Whitmire v. Wal-Mart Stores provided significant guidance on employee and employer rights in connection with the Arizona Medical Marijuana Act (“AMMA”), the Arizona Drug Testing of Employees Act (“DTEA”), and the Employer Protection from Litigation (“EPL”) revisions to the DTEA.

In Whitmire v. Wal-Mart Stores, Carol Whitmire was a customer service supervisor at Wal-Mart who also had an Arizona medical marijuana card. In March 2016, Whitmire was injured at work when a bag of ice fell on her wrist. When Whitmire reported the injury, she went to urgent care and took a post-accident urine drug test, consistent with Wal-Mart’s drug and alcohol policy. After she took the test, Whitmire informed her supervisor that she had a medical marijuana card. The test came back positive for marijuana, as Whitmire had smoked marijuana about 12 hours earlier to help her sleep and for her arthritis. Wal-Mart terminated Whitmire’s employment, citing the positive drug test as the reason for her termination. Whitmire then sued Wal-Mart claiming that Wal-Mart violated the AMMA by terminating her because she was a medical marijuana user.

The court made two extremely significant rulings for employers. First, the court held that the AMMA provides an implied private cause of action for employees. This means that an employee with a medical marijuana card may sue his/her employer if the employer takes an adverse employment action in violation of the law. Prior to Whitmire, it was unclear whether such a private cause of action existed for employees.

Second, the court held that although the EPL’s “good faith belief” affirmative defense (available to employers who have drug testing policies conforming to the DTEA), remains a viable defense to an AMMA discrimination claim, the employer cannot just rely on a positive drug test to meet its burden. Rather, the employer must have evidence that the employee was impaired while working. This evidence could come from (1) witness statements providing that the employee was exhibiting symptoms of impairment (e.g., slurring, walking unsteadily, etc.) while working, or (2) an expert witness testifying that the results of the drug test establish that the employee was impaired while working. Because Wal-Mart had no evidence of impairment beyond Whitmire’s recent positive drug test, the Court granted summary judgment to Whitmire on her claim that Wal-Mart had discriminated against her in violation of the AMMA.

Key Takeaways for Employers

Employers must have a process for documenting an employee’s impairment at work. This is necessary not just for employees with medical marijuana cards but also for employees with prescriptions for narcotics. This is a much easier way to document impairment than setting up dueling expert witnesses to opine on whether the particular drug test alone establishes impairment.

Employers should consider training supervisors and management on how to document evidence of an employee’s impairment while working.

Employers should speak with drug-testing providers about the testing process to ensure that it is set up to the best of the company’s ability to demonstrate impairment at the time of the test.

When terminating an employee with a medical marijuana card, it is important for employers to properly document the reason for termination in order to be able to rebut an employee’s claim that the adverse employment action was in any way related to the employee’s medical marijuana card.

Finally, it is important to note that Whitmore does not affect an employer’s ability to lawfully terminate an employee with a medical marijuana card for using or possessing marijuana in the workplace.